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CHAPTER 5 APPLICATION OF PENALTIES A. Introductory

Q. 513. Ans.

What is the rule if penalties are prescribed in general terms? Any exception? The penalty prescribed by law for the commission of a felony shall be imposed upon the principals in the commission of such felony. Whenever the law prescribes a penalty for a felony in general terms, it shall be understood as applicable to the consummated felony. (Art, 46, Revised Penal code) The exception is when the penalty to be imposed upon the principal in frustrated or attempted felony is filed by law- i.e., reclusion temporal in its medium period to reclusion perpetua as provided by Art. 297. Revised Penal Code for frustrated or attempted for, robbery with homicide.

Q. 514. Ans.

Discuss graduation of penalties. Penalties may be graduated by degrees or periods. Thus, (1) Graduation of penalties by degrees - this refers to stages of execution of felonies consummated frustrated or attempted and to the degree of the criminal participation of the offender whether as principal accomplice or accessory. (2) Graduation of penalties by periods- The division of a divisible penalty Into three periods- maximum, medium and minimum- refers to the proper period of the penalty which should be Imposed when aggravating or mitigating circumstances attend the commission of the crime. What is the justification for death penalty? Social justice and exemplarity justify the penalty of death. The convict himself is a dangerous enemy of society and death penalty is imposed upon him is a warning to others. (People v. Carillo, 85 Phil. 611, 635) Death penalty is not cruel and unusual punishment. Is death penalty imposable at present? When was the constitutional prescription against the imposition of the death penalty lifted? Yes. The 1987 Constitution has previously suspended the imposition of death penalty.52 However, that constitutional prescription against imposition of death penalty was finally lifted with the enactment of Rep. Act No. 7659, otherwise known as "Heinous Crimes Law which took effect 15 days after publication on Dec.16, 1993 or on December 31, 1993. (People v. Martin Simon, 234 SCRA 555) Death penalty is now imposed on heinous crimes.

Q. 515. Ans.

Q. 516. Ans.

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Q.517. Ans.

What are heinous crimes? Heinous crimes are those which are punishable by death for being grievous, odious and hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and morality in a just and civilized and ordered society. Death is imposable on heinous crimes. Name ten(10) specific heinous crimes. The ten specific heinous crimes are: (1) Treason (2) Qualified piracy (3) Qualified bribery (4) Parricide (5) Murder (6) Kidnapping and serious illegal detention (7) Robbery with homicide (8) Destructive arson (9) Rape committed by two or more persons, or with a deadly weapon or with homicide. (10) Plunder. What are the cases that death penalty cannot be imposed? When may the death penalty not be imposed although the accused is really guilty of capital offense with aggravating and no mitigating circumstance? In the following cases: (1) When the guilty person is more than 70 years of age.(Art. 47, par1, Revised Penal Code; People v. Alcantara, 21 SCRA 906, 913-914 (1967)) (2) When upon appeal or revision of the case by the Supreme Court the required justices are not unanimous in their voting as to the propriety of the imposition of the death penalty Note: Sec. 1, Rep. Act No. 296(Judiciary Act of 1948) fixed the approving justices to eight. Now that the Supreme Court is composed of 15 members, (Sec. 1, Art. X, 1987 Constitution) a vote of ten (10) members is necessary to sustain the imposition of death penalty (People v. Jose Tampus, 76 O.G. 8466, Nov. 10, 1980) (3) When offender is a minor under 18 years of age Note: Minority may result in lowering by one or two degrees any crime committed by minor; hence, death penalty cannot be imposed.

Q. 518. Ans.

Q. 519. Ans.

Q. 520. Ans.

What is the purpose of automatic review of death sentence by the Supreme Court? Rule 122, See. 9, Rules of Court requires that records imposing death sentence be forwarded to the Supreme Court.

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This is for the protection of the accused. Having received the highest penalty which the law imposes, he is entitled under the law to have the sentence and all the facts and circumstances on which it is founded placed before the highest tribuna of the land to the end that its justice and legality may be clearly and conclusively determined. Such procedure is merciful. it gives a second chance for life. (US. v. Laguna, 17 Phil. 532, 540) Q. 521. Ans. Is the automatic review by the Supreme Court waivable by the accused? No. Until the decision has been reviewed by the Supreme Court which finally passes upon it the same is not final and conclusive and this automatic review by the Supreme Curt of decisions imposing the death penalty is something which neither the court nor the accused could waive or evade. (People v. Villanueva, 93 Phil. 927, 931) When is the execution of the death penalty suspended under the Revised Penal Code? Death penalty shall not be executed: (1) Upon a woman within three years after date of the sentence: (2) While she is pregnant: (3) Upon a person over 70 years of age (Art. 83, Revised Penal Code) (4) Upon a convict who becomes insane after final judgment. (Art. 79, Revised Penal Code) Cross-Reference. See comments under Art.83, infra. pp. of this reviewer. Is complex crime, only one crime? Yes. In complex crime, although two or more crimes are actually committed, they constitute only one crime in the eyes of the law as well as the conscience of the offender. The offender has only one criminal intent. Even in the case where an offense is a necessary means for committing the other, the/evil intent of the offender is only one (People v. Hernandez, 99 Phil. 5115); hence, there is only one penalty imposed for the commission of a complex crime. What are the two kinds of complex crimes? They are: (1) Compound crime (delito compuesto) - when a single act constitutes two or more grave or less grave felonies. (2) Complex crime proper (detito complejo) - when an offense is a necessary means for committing the other. Q. 525. Ans. What are the requisites of compound crime (when a single act constitutes two or more grave or less grave felonies)? The requisites are: (1) That only a single act is performed by the offender;

Q. 522. Ans.

Q. 523. Ans.

Q. 524. Ans.

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(2) That the single act produces two or more grave felonies; or one or more grave and one or more less grave penalties; or two or more less grave felonies. Examples: single act of throwing hand grenade producing murder and multiple attempted murders. Or placing a bomb in a plane or shopping mall and exploded killing 13 persons constitute complex crime of murder and destruction of property. (People v. Largo, 99 Phil. 1061-1062) However, theft of firearm and illegal possession of the same firearm do not form a complex crime for in that situation there are two distinct crimes. (People v. Estoista, 93 Phil. 647; People v. Remerata, 98 Phil. 413, 414) Q. 526. Ans. What are the requisites when an offense is a necessary means for committing the other? The requisites are: (1) That at least two offenses are committed; (2) The one or some of the offenses must be necessary to commit the other; (3) That both or all the offenses must be punished under the same statute. Cite instances where there are no complex crimes. In the following cases: (1) Subsequent acts of intercourse, after forcible abduction with rape, are separate acts of rape. (People v. Robos, 98 SCRA 353, 364; People v. Jose, 37 SCRA 450, 475) (2) No complex crime when trespass to dwelling is a direct means to commit grave offense (with rape, homicide or murder) because trespass to dwelling will be considered as the aggravating circumstance of unlawful entry or of breaking part of the dwelling under pars. 18 and par. 19 of Art 14, Revised Penal Code (People v. Abedosa, 53 Phil. 788, 791) (3) No complex crime, when one offense is committed to conceal the other - i.e., burning the house to conceal the dead body (People v. Bersabal, 48 Phil. 439, 442) or falsification conceal the malversation (US. v. Geta, 43 Phil. 1009, 1013) (4) No complex crime where one of the offenses is penalized by special law such as the Administrative Code (People v. Araneta, 48 Phil. 650, 654) (5) Where two or more crimes are committed not by a single act or one is not a necessary means for committing the other, there is no complex crime. (6) No complex crime of rebellion with murder, arson, robbery or other common crimes because the common offenses are absorbed or inherent in the crime of rebellion.(People v. Hernandez. 99 Phil., 515;551) What are some basic rules in complex crimes? What penalties are to be imposed from complex crimes? What is the penalty of complex crime? These rules are observed: (1) The penalty for complex crime is the penalty for the most serious crime, the

Q.527 Ans.

Q.528 Ans.

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(2) (3) (4) (5)

same to be applied in its maximum period. However, if the different crimes resulting from one single act are punished with the same penalty, the penalty for anyone of them shall be imposed, the same to be applied in the maximum period (Ibid.) When two crimes produced by a single act are respectively within the exclusive jurisdiction of two courts of different jurisdiction, the court of higher jurisdiction shall try the complex crime. (Angeles v. Jose, 96 Phil. 151) One information should be filed when a complex crime is committed . (People v. Pineda, 20 SCRA 748, 750, 754 (1967) But if the crimes is not complex separate information may be filed (Ibid) When a complex crime is charged and the evidence fails to support he charge as to one of the component offenses, the defendant can be convicted of the other. (People v. Maribung, 149 SCRA, 202, 300-301) Article 48 applies only to cases where the Code does not provide) definite specific penalty for a complex crime. Article 48 does not apply when the law provides one single penalty for special complex crimes, robbery with homicide (par. 1, Art. 294); robbery with rape (par. 2, Art. 294); or kidnapping with serious physical injuries (par. 3, Art. 267); or rape with 10micide (Art.335, RPC).

Q.528 Ans.

What is meant by plurality of crimes? Plurality of crimes consist in the successive execution by he same individual of different criminal acts upon any of which 10 conviction has yet been declared. (Guevarra) Classify (kinds) plurality of crimes. The two classes or kinds of plurality of crimes are: (1) Formal or ideal plurality- that provided by Art. 48; however, with one criminal liability for this kind of plurality. There are three groups of this kind. (a) When the offender commits any of the complex crime; (b) When the law specifically fixes a single penalty for two or more offenses - i.e., robbery with homicide, kidnapping with serious physical injuries; and (c) When the offender commits continued crimes. (2) Real or material plurality - different crimes in law as well as in the conscience of the offender with the offender being liable for each and every offense being committed i.e., A shot B and stabbed C. Distinguish recidivism from plurality of crimes. In recidivism there must be conviction by final judgment of the first or prior offense; in plurality of crimes, there is conviction of any of the crimes committed, What is a continued crime? A continued (continuous or continuing) crime is a single crime, consisting of a series of acts but all arising from one criminal resolution-i.e. collector collected several amounts from different persons or taking 6 roosters from coop is a single

Q.529 Ans.

Q.530 Ans. Q.531 Ans.

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offense of theft being result of single criminal impulse. (People v. Jaranilla, 55 SCRA 563, 573;) Q.532 Ans. What is the meaning of continuing offense? A continuing offense is a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however, long a time it may occupy. (22 C.J.S 52) Is a continued crime a complex crime. No. The offender in continued or continuing crime does not perform a single act, but series of acts and one offenses is not an necessary means for committing the other. Is continued crime different or identical with a transitory crime? No. Transitory crime is also called "moving crime" and in criminal procedure it is important in the determination of venue of some criminal cases (i.e., kidnapping demanding ransom may involve in several places). When a transitory crime is committed, the criminal action may be instituted and tried in the municipality, city or province (judicial district) wherein any of the essential ingredients thereof took place. Q.535 Ans. How is continued crime being distinguished from real or material plurality of crimes? Both involve series of acts performed by the offender. However, they differ in imposition of penalty because in continued crime the different acts constitute only one crime arising from one criminal resolution. In real or material plurality, each act performed by the offender constitutes separate crime, since each act is generated by a criminal impulse. Cite instances where application of Art. 49 (penalty to be imposed upon the principals when the crime committed is different from that intended). In the following cases: (1) Art. 49 has reference to the cases provided by first paragraph of Art. 4, relative to cases of: (a) Aberratio ictus (mistake of blow); (b) Error in personae (mistake in identify of the victim); and (c) praeter intentionem (where a more serious consequence not intended by the offender befalls the same person. Note: For cross-reference, See Query Nos. p. of this text. (2) Art. 49 is applicable when the intended crime and the crime actually committed are punished by different penalties. Q.537 What are the rules relative to penalties to be imposed when the crime

Q.533 Ans.

Q.534. Ans.

Q.536 Ans.

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Ans.

committed is different from that intended? The basic rules are: (1) If the penalty for the felony committed be higher than the penalty for the offense which the accused intended to commit, the lower penalty shall be imposed in its maximum period. (2) If the penalty for the felony committed be lower than the penalty for the offense which the accused intended to commit, the lower penalty shall be imposed in its maximum period. (3) If the act committed also constitutes an attempt or frustration of anther crime, and the law prescribes a higher penalty for either of the latter, the penalty for the attempted or frustrated crime shall be imposed in its maximum period (Art. 49, Revised Penal code) Distinguish Art. 49 from Article 48. In Art. 49 pars. 1 and 2 RPC the lesser penalty is to be imposed and to be applied in the maximum period in Art. 48 the penalty for more or most serious crime shall be imposed and to be applied in its maximum period. With respect to the extent of penalty to be imposed under the Revised Penal Code, what are the bases for their determination? The bases are: (1) The stage reached by the crime in its development- attempted, frustrated or consummated. (2) The respective participations of the persons liable. (3) The circumstances (aggravating or mitigating) which attended In the commission of the crime.

Q.538. Ans.

Q.539 Ans.

Q.540 Ans.

In relation to imposition of penalty, what is degree? A degree is one entire penalty, one whole penalty or one unit of the penalties enumerated in the graduated scales provided by Art. 71, Revised Penal Code. Each of the penalties of reclusion perpetua, reclusion temporal, prision mayor, etc. mentioned in the graduated scales under Art. 71 is a degree. What is meant by period of a penalty? A period is one of the three equal portions, called minimum, medium and maximum of a divisible penalty. (See Art. 65, Revised Penal Code) Note: (a) When there is mitigating or aggravating circumstance the penalty is lowered or increased by period only, except when the penalty is divisible and there are two or more mitigating and without aggravating circumstance, in which the penalty is lowered by degree. (b) A period of a divisible penalty when prescribed by the Code as a penalty for a felony, is in itself a degree.

Q.541 Ans.

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Q. 542. Ans.

Give the legal and basic rules in the imposition of penalty upon participants performing different stages of the offense? The rules are: (1) The penalty to be imposed upon principals of a frustrated crime shall be the penalty next lower in degree than that prescribed by law for the consummated felony. (Art. 50, Revised Penal Code) (2) The penalty to be imposed upon the principals of attempted crime shall be the penalty lower by two degrees than that prescribed by law for the consummated felony (Art. 51, Revise d Penal code) (3) The penalty to be imposed upon accomplices in a consummated crime shall be the penalty next lower in degree than that prescribed by law for the consummated felony (Art. 52, Revised Penal code) (4) The penalty to be imposed upon accessories to the commission of a consummated felony shall be the penalty lower by two degrees than that prescribed by law for the consummated felony. (Art. 53, Revised Penal code) (5) The penalty to be imposed upon accomplices in a frustrated crime shall be the penalty next lower in degree than that prescribed by law for the frustrated felony. (Art. 54, Revised Penal code) (6) The penalty to be imposed upon accessories of a frustrated crime shall be the penalty tower by two degrees than that prescribed by law for the frustrated felony. (Art. 55, Revised Penal code) (7) The penalty to be imposed upon accomplices in an attempted crime shall be the penalty next lower in degree than that prescribed by law for an attempt to commit a felony (Art. 56, Revised Penal Code) (8) The penalty to be imposed- upon accessories of an attempted crime shall be the penalty lower by two degrees than that prescribed by law for the attempt (Art. 57, Revised Penal code)

Q. 543. Ans.

Are there exceptions to the provisions of Art. 50 to 57 of the Revised Penal Code? Yes, in cases where the law expressly prescribed the penalty for a frustrated or attempted felony or to be imposed upon accomplices or accesories. (Art. 60, Revised Penal Code) For example, the penalty for frustrated parricide, murder, or homicide may be two degrees lower and the penalty for attempted parricide, murder or homicide may be three degrees lower. (Art. 250, Revised Penal Code) When public officers are guilty as accessories under par. 3 of Article 19, for abusing their public functions, what are the additional penalties? They shall suffer additional penalties of: (1) Absolute perpetual disqualification, if the principal offender is guilty of a grave felony; (2) Absolute temporary disqualification if the principal offender is guilty of less

Q. 544. Ans.

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grave felony. (Art. 58, Revised Penal code) Q. 545. Ans.

What is the penalty to be imposed in case of failure to commit crime because the means employed or the aims sought are impossible? For impossible crimes the penalty is arresto mayor or a fine ranging from 200 to 500 pesos. (Art. 59, Revise Penal Code) What is the basis for imposition of proper penalty in impossible crime? They are: social danger and degree of criminality shown by the offender. What are the exceptions to the rules' established in Articles 50 to 57, RPC (see also Q. No. 543, p.176)? The excepted cases are: (1) Arts. 50 to 57 do not apply when the law expressly prescribes the penalty for a frustrated or attempted felony or to be imposed upon accomplices or accessories- i.e., see Art. 297, RP(attempted/frustrated robbery); (2) When the accomplice is punished as principal like these cases (a) The ascendants, g4ardians, curators, teachers and any person who by abuse of authority or confidential relationship shall cooperate as accomplices in the crimes of rape, acts of lasciviousness, seduction, corruption of minors, white slave trade or abduction (Art. 346, Revised Penal Code) (b) One who furnished the place for the perpetration of the crime or slight illegal detention (Art. 268, Revised Penal Code) (3) When accessory punished as principal like these cases: (a) Knowingly concealing certain evil practices (Art. 162, Revised Penal code) (b) Anti-fencing Act. (4) When certain accessories are punished with a penalty one degree lower, instead of two degrees as in the following cases, (a) Knowingly using counterfeited seal or forged signature or stamp of the President. (Art. 162, Revised Penal Code) (b) Illegal possession and use of a false treasury or bank note (ART. 168, Revised Penal Code) (5) Using falsified document. (par. 3, Art. 173, Revised Penal Code) (6) Using a falsified dispatch (par. 2, Art. 173, Revised Penal Code)

Q. 546. Ans. Q. 547. Ans.

Q. 548. Ans.

What are the rules governing graduating of penalties? The rules are: First rule: When the penalty prescribed for the felony is single and indivisible, the penalty next lower in degree shall be that immediately following that indivisible penalty in the graduated scale prescribed in Art.

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NOTE: (a) Indivisible penalties are: death, reclusion perpetua and public censure (b) Divisible penalties are reclusion temporal down to arresto menor. The divisible penalties are divided into three periods: minimum, medium and maximum. (c) Reclusion perpetua (i.e., penalty for kidnapping and failure to return a minor is single and indivisible and the penalty next lower in degree is reclusion temporal. Second Rule: When the penalty prescribed for the crime is composed of two indivisible penalties, or of one or more divisible penalties to be imposed to their full extent, the penalty next lower in degree shall be that immediately the lesser penalties prescribed in the graduated school. (Art. 61, par. 2, Revised Penal code) Note: (a) Two indivisible penalties are reclusion perpetua to death like the penalty for parricide (Art. 246). The penalty immediately following the lesser of the penalties, is reclusion temporal. (b) One divisible penalty to be imposed to its full extent is reclusion temporal and the penalty immediately following the divisible penalty is prision mayor. And two divisible penalties to be imposed to their full extent are prision correccional to prision mayor and the penalty immediately following the lesser penalties of prision correctional to prision mayor is arresto mayor. (See Scale No. 1, in Art. 71) Third Rule: When the penalty prescribed for the crime is composed of one or two indivisible penalties and the maximum period of another divisible penalty, the penalty next lower in degree shall be composed of the medium and maximum periods of the proper divisible penalty and the maximum period of that immediately following in said respective graduated scale.(Art. 61 par. 3, Revised Penal code) Note: (a) The penalty for murder (Art. 248) is reclusion temporal in its maximum period to death. The penalty next lower is composed of the medium and maximum periods of reclusion temporary and the maximum of prision mayor (People v. Ong Ta, 70, Phil. 553,555) (b) When the penalty is composed of one indivisible penalty and the maximum period of a divisible penalty -i.e., reclusion temporal in its maximum period to reclusion perpetua. Fourth Rule: When the penalty prescribed for the crime is composed of several periods, corresponding to different divisible penalties, the penalty next lower in degree shall be composed of the period immediately following the minimum prescribed period and of the two next following which shall be taken from the

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penalty prescribe if possible; otherwise from the penalty immediately preceding in the above mentioned respective graduated scale. Note: (a) The word "several" in relations to the number of periods means consisting in more than two periods. Hence, the fourth rule contemplates a penalty composed of at least three periods. (b) The penalty which is composed of several periods corresponding to different divisible penalties prision mayor in its medium period to reclusion temporal in its minimum period. The period immediately following the minimum which is prision mayor in its medium is prision mayor in its minimum period. The two periods next following are the maximum and medium periods of prision correctional the penalty next following in the scale prescribed in Art. 71 since it cannot be taken from the penalty prescribe. Fifth Rule: When the law prescribes a penalty for a crime in some manner not specifically provided for in the four preceding rules, the courts, proceeding by analogy, shall, impose the corresponding penalties upon those guilty as principals of the frustrated felony or of attempt to commit the same and upon accomplice and accessories (Art. 61, par. 5, Revised Penal code) Note: Mitigating and aggravating circumstances are disregarded in the application of the rules for graduating penalties. Q. 549. Ans. What are the basic and simplified guide in the application of the rules in pars. 4 and 5 of Article 61, RPC? These simplified rules: (1) If the penalty prescribed by law is composed of three periods, the penalty next lower in degree is the penalty consisting of three periods down in the scale. (2) If the penalty prescribed by law consists of two periods, the penalty next lower in degree is the penalty consisting of two periods down in the scale. (3) If the period prescribed by law consists of one period, the penalty next lower in degree is the next period in the scale. Q. 550. Ans. What are the effects of the attendance of aggravating or mitigating circumstances or of habitual delinquency? The effects are: (1) Aggravating circumstances (generic and specific) have the effect of increasing the penalty, without, however, exceeding the maximum provided by law, (2) The presence of mitigating circumstances have the effect of diminishing the penalty. (3) Habitual delinquency has the effect, not only of increasing the penalty because

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of recidivism which is generally implied in habitual delinquency but also of imposing an additional penalty. Q. 551. Ans. What are the governing rules relative to the presence of aggravating and mitigating circumstances in the commission of the offense? The rules are: (1) Aggravating circumstances which is in themse1ves constitute a crime specially punishable by law (i.e., arson, derailment of cars due to damaging any railway, Art. 330) or which are included by the law in defining a crime (dwelling In robbery with force upon things, Art. 299, poison In murder, abuse of confidence in qualified theft, Art. 310) and prescribing the penalty therefore shall not be taken into account for the purpose of Increasing the penalty (Art. 62, par. 1, Revised Penal code) When in the commission of the crime, advantage was taken by the offender of his public position, the penalty to be imposed shall be in its maximum regardless of mitigating circumstances. (a) The maximum penalty shall be imposed if the offense was committed by any person who belongs to an organized/syndicated crime group. An organized/syndicated crime group meal;1s a group of two or more persons collaborating, confederating or mutually helping one another for purposes of again in the commission of any crime (Art. 62, par 1 as amended by Sec. 23, Rep Act No. 7659) (2) The same rule shall apply with respect to any aggravating circumstances inherent in the crime to such a degree that it must of necessity accompany the commission thereof i.e. evident premeditation is inherent in robbery and theft. (Art. 62, par. 3, Revised Penal code) (3) Aggravating or mitigating circumstances which arise from the moral attributes of the offender, or from his private relations with the offended party, or from any personal cause, shall only serve to aggravate or mitigate the liability of the principals, accomplices and accessories as to whom such circumstances are attendant (Art. 62, par. 3, Revised Penal Code) (4) The circumstances which consist In the material execution of the act, or in the means employed to accomplish it, shall serve to aggravate or mitigate the liability of those persons only who had knowledge of them at the time of the execution of the act or their cooperation therein.(Art. 62, par. 4, Revised Penal code) Difference: The circumstances relating to the person participating in the commission of the crime do not affect all the offenders but only those to whom such are attendant, whereas, the circumstances relating to the means employed or material execution of the crime affect those offenders who have their cooperation therein (US v. Ancheta, 15 Phil. 470, 482 citing Groizard) (5) The legal effects of habitual delinquency (a) Third conviction - culprit sentenced to the penalty for the crime committed and to the additional penalty of prision correccional medium and maximum period.

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(b) fourth conviction - the penalty is that provided by law for the last crime and the additional penalty of prision mayor minimum and medium periods (c) Fifth or additional conviction- the penalty is that provided by law for the last crime and the additional penalty of prision mayor maximum to reclusion temporal minimum periods. (Art. 62, par. 5, Revised Penal code) NOTE (a) In no case shall the total of the two penalties imposed upon the offender exceed 30 years (Ibid) (b) Habitual Delinquent - Who is a habitual delinquent for purposes of Art. 61, Revised Penal Code?(BAR Q.1948) A person is a habitual delinquent if within a period often years from the date of his (last) release or last conviction of the crimes of:(1) serious or less serious physical injuries; (2) robo (robbery), hurto (theft), estafa and falsification, he is found guilty of any of said crimes a third time or oftener. (Art. 62, last par, Revised Penal Code) (c) Requisites: The requisites of habitual delinquency are: (1) That the offender had been convicted of any of he crimes of serious or less serious physical injuries, robbery, theft, estafa or falsification; (2) That after that conviction or after serving his sentence he again committed, and, within 10 years from his release or first conviction, he was again convicted of any of the said crimes for the second time; (3) That after his conviction of, or after serving sentence for, the second offense, he again committed, and. within 10 years from his last release or last conviction, he was again convicted of any said offense, the third time or oftener. Q. 552. Ans. Distinguish habitual delinquency from recidivism. Distinguishing the two: (1) As to crimes committed: in recidivism, it is sufficient that the accused on the date of his trial, shall have been previously convicted by final judgment of another crime embraced in the same title of the Code; in habitual delinquency the crimes are specified (2) As to the period of time the crimes are committed- In recidivism, no period of time between the former conviction and the last conviction is fixed by law; in habitual delinquency, the offender is found guilty of any of the crimes specified within 10 years from his last release or last conviction. (3) As to the number of crimes committed.- In recidivism, the second conviction for an offense embraced in the same title of the Code is sufficient; in habitual delinquency, the accused must be found guilty the third time or oftener of any of the crime specified.(People v. Bernal, 63 Phil. 750, 755) (4) As to their effects.- Recidivism, if not offset by a mitigating circumstance, serves to increase the penalty only to the maximum; whereas, if there is habitual delinquency, an additional penalty is also imposed. (5)

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Q. 553. Ans.

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Discuss or cite some leading jurisprudence or ruling relative to habitual delinquency: The following rulings: (1) Ten-year period computed either from last conviction or last release. (People v. Lacsamana, 70 Phil. 517, 520; People v. Rama, 55 Phil. 981, 982, 983).It is not counted from date of commission of subsequent offense, but to the date of conviction. (People v. Morales, 61, Phil. 222, 224) (2) Imposition of additional penalty on habitual delinquent is constitutional; it is not an ex post facto or nor an additional punishment for future crimes (People v. Montera, 55 Phil. 993) Its imposition is mandatory, (People v. Ortezuela, 51 Phil. 858)not discretionary (People v. Navales, 59 Phil. 496) (3) When offenders committed several crimes with no conviction of any of them, he is not a habitual delinquent. (People v. Santiago, 55 Phil. 266, 169-270) Previous convictions are considered every time a new offense is committed. (4) Convictions on the same day or about the same time are considered only one (People v. Kaw Liong, 57 Phil. 839, 841, 842; People vs. Lopido, C.A. 38 O.G. 1907) Crimes committed on the same date, although convictions on different dates are considered only one. (People v. Albuquerque, 69 Phil. 608-609) (5) Commission of any crimes need not be all consummated (may be frustrated or attempted) and it also applies to accomplices and accessories. (People v. Abuyen, 52 Phil. 722, 725, 726; people v. San Juan, 69 Phil. 347, 349) (6) Habitual delinquency is not a crime. It is simply a fact or circumstance which, if present may give rise to additional penalties (People v. De Jesus;People v. Blanco, 85 Phil. 296, 297) Although a habitual delinquent is necessarily a recidivist. (People v. tolentino, y5 Phil. 643,644)

Q. 554. Ans.

What are the rules to be observed in the application of indivisible penalties. The rules are: First Rule: When the penalty is single indivisible it shall be applied regardless of any mitigating or aggravating circumstances. (Art. 63, first paragraph, Revised Penal code) Note: Reclusion perpetua is single and indivisible and imposable to: kidnapping and failure to return the minor (Art. 270), rape, Death is another single indivisible penalty imposable to heinous crimes (Rep. Act No.). Second Rule: When the penalty is composed of two indivisible penalties the following should be observed: (1) When there is only one aggravating circumstance, the greater penalty shall be imposed; (2) When there is neither mitigating nor aggravating circumstances, the lesser penalty shall be imposed; (3) When there is a mitigating circumstances and no aggravating circumstance, the lesser penalty shall be imposed.

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(4) When both mitigating and aggravating circumstances are present, the court shall allow them to offset one another (Art. 63, Revised Penal Code) Q. 555. Ans. Give examples of two indivisible penalties and to what crimes they are imposable? Reclusion perpetua to death and this penalty is imposed to these crimes: parricide (Art. 246), robbery with homicide (Art 294, par. 1); kidnapping and serious illegal detention without intention to extort ransom (Art. 267) etc. Note: When the penalty is composed of two indivisible penalties, the penalty cannot be lowered by one degree, no matter how many mitigating circumstances are present. (US v. Guevarra, 10 Phil. 37, 38; People of. Formigones, 87 Phil. 658, 663-664; Us v. Relador, supra) However, an exception is recognized. When a privilege mitigating circumstance under Art. 68 or Art. 69 is present he may get a penalty one or two degrees lower. Q. 556. Ans. When to apply Art. 64 Revised Penal Code? Art. 64 applies only when penalty has three periods like the following penalties: reclusion temporal, prision mayor, prision correccional, arresto mayor, arresto menor because they are divisible into three periods-minimum, medium and maximum. When the penalty imposed is single divisible penalty as reclusion temporal for homicide, under Art. 76, it is divided into three equal parts: reclusion temporal maximum (17 years, 4 months and day); reclusion temporal medium (14 years 8 months and 1 day); and reclusion temporal minimum (12 years and 1 day). If the penalty is made up of three different penalties, as prision correccional to reclusion temporal, each forms according to Art. 77; hence, prision correccional will be minimum, prision mayor, the medium and reefusion temporal, the maximum, Q. 557. Ans. Give the rules for the application of penalties which contains three periods. The rules are: (1) No aggravating and no mitigating - medium period (2) Only mitigating- minimum period (3) Only an aggravating- maximum period. (4) When there are aggravating and mitigating-the court shall offset those of one class against the other according to their relative weight (5) Two or more mitigating and no aggravating - penalty next lower, in the period applicable, according to the number and nature of such circumstances. (6) No penalty greater than the maximum period of the penalty prescribed by law shall be imposed, no matter how many aggravating circumstances are present (7) The court can determine the extent of the penalty within the limits of each period, according to the number and nature of the aggravating and mitigating circumstances and the greater or lesser extent of the evil produced by the

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crime (Art. 64, Revised Penal Code) Q. 558. Ans.

16

What are the cases where the rules specified by Art. 64 Revised Penal Code not applicable? In the following case, Art. 64 does not apply: (1) to Indivisible penalties; (2) Penalties prescribed by special laws; and (4) Fines (People v. Ching Kuan, 74 Phil. 23) What are the cases where mitigating and aggravating circumstances are not considered in the imposition of penalty? In these cases: (1) When the penalty is single and indivisible (2) In felonies through negligence under Art 365. (People v. Quijano, CA 43 O.G. 2214; Art365) (3) The penalty imposed on more or other non-Christian inhabitants. (People v. Moro Dismban, 88 Phil. 23, 24) (4) When the penalty is only a fine imposed by an ordinance (People v. Ching Kuan, 74 Phil. 23, 24) (5) when the penalties are prescribed by special laws (People v. Respect, 58 O.G. 458) How to compute the rule in Art. 65 which states- "In cases in which the penalty prescribed b law is not composed of three periods. The courts shall apply the rules contained in the foregoing articles, dividing into three equal portion the time included in the penalty prescribed, and forming one period of each of the three portions"? Implementing the computation set forth by Article 65 Revised Penal Code: First, compute and determine the first three periods of the entire penalty; Second, the time included in the penalty prescribed should be divided into three equal portions, after subtracting the minimum (eliminate the 1 day) from the maximum of the penalty. Third, The minimum of the minimum period should lie the minimum of the given period (including the one day Fourth, the quotient should be added to the minimum prescribed (eliminate the 1 day) and the total will represent the maximum of the minimum period. Take the maximum of the minimum period, add 1 day and make it the minimum of the medium period; then add the quotient to the minimum (eliminate the 1 day) of the medium period. Take the maximum of the medium period, add 1 day and make it the minimum of the maximum period; then add the quotient to the minimum (eliminate the1 day) of the maximum period and the total will represent the maximum of the maximum period. Example: Prision mayor- 6 yrs. 1 day to 12 years Divide: 6 years by 3 equals 2 years. So: Minimum: 6 years 1 day to 8 years (6 +2= 8)

Q. 559. Ans.

Q. 560.

Ans.

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Medium 8 years 1 day to 10 years (8+2+10) Maximum 10yeas1 day to 12years(10+2=12) Q. 561. Ans. What are the rules governing the imposition of fines?

17

The rules are: (1) The court can fix any amount of the fine within the sound discretion of the court provided that it shall not exceed the authorized maximum. (People v. Quinto, 60 Phil. 551) (2) The court must consider (a) The mitigating and aggravating circumstances: (b) More particularly the wealth and means of the culprit (Art. 66, Revised Penal Code) (3) Additionally, other factors to be considered. (a) Gravity or seriousness of the crimes committed: (b) The heinousness of its perpetration; (c) The magnitude of its effects on the offender's victims (People v. Manuel, CA-GR No. 14648-61-R, July 5, 1957) What is the penalty to be imposed when not all the requisites of exemption of the fourth circumstance i.e. exempting circumstance of accident) of Art. 12 are present? If culprit guilty of grave felony- the penalty to be imposed shall be arresto mayor in its maximum period to prision correccional in its minimum period. If guilty of less grave felony the imposable penalty shall be arresto mayor in its minimum and medium periods. (Art. 67, Revised Penal Code) What are the two privileged mitigating circumstances contemplated by Art. 68, Revised Penal Code? They are: (1) Minority over 9 but less than 15 years of age; and (2) 15 years but less than 18 years, the age to be reckoned at the time of the commission of the crime. The burden of proof is upon the minor of minority is being invoked (People v. Reyes, CA 48 O.G 1022; People v. Tismop GR no. 44773, Dec. 4, 1991) What is the penalty to be imposed upon a person under 18 years of age? The following: (1) Two degrees next lower for minor over 9 years old but less than 15 when acting with discernment. (2) One degree next lower when minor over 15 years but less than 18 years. (Art. 68, Revised Penal Code)

Q. 562.

Ans.

Q. 563. Ans.

Q. 564. Ans.

Q. 565.

What is the penalty to be imposed when the crime committed is not wholly

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excusable? Ans.

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A penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed is not wholly excusable by reason of lack of some of the conditions required to justify the same or to exempt from criminal liability in the several cases mentioned in Articles 11 and 12, provided that the majority of such conditions are present. The courts shall impose the penalty in the period which may be deemed proper, in view of the number and nature of the conditions of the conditions of exemption present or lacking. (Art. 69, Revised Penal code) Note: If unlawful aggression is absent, the penalty cannot be reduced as this is the basic element of self defense, whether complete or incomplete (US vs. Navarro, 7 Phil. 73)

Q. 566. Ans.

How will the culprit to serve two or more penalties? He will serve either simultaneously (if the nature of the penalties will so permit) or successively according of their respective severity. (Art. 70, Revised Penal code) What are the order of penalties according to their respective severity? They are as follows: (1) Death (2) Reclusion perpetua (3) Reclusion temporal (4) Prision mayor (5) Prision correccional (6) Arresto mayor (7) Arresto menor (8) Destierro (9) Perpetual absolute disqualification (10) Temporary absolute disqualification (11) Suspension from public office, the right to vote and be voted for, the right to follow profession or calling. (12) Public censure (Art. 70, Revised Penal Code)

Q. .567. Ans.

Q. 568. What are the penalties that can be served simultaneously? or may be served concurrently? Ans. The following: (1) Perpetual absolute disqualification; (2) Perpetual special disqualification; (3) Temporary absolute disqualification; (4) Temporary special disqualification; (5) Suspension; (6) Destierro (7) Public censure; (8) Fine and bond to keep the peace.

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(9) Civil interdiction (10) Confiscation and payment of costs.

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Note: Imprisonment must be served before destierro Arresto menor is more severe than destierro. (People v. Misa, CA 36 O.G. 3697) Q. 569. Ans. What is meant by three-fold rule? According to the three-fold rule, the maximum duration of the convict's sentence shall not be more than three times the length of time corresponding to the most severe of the penalties imposed upon him. Most severe of the penalties includes equal penalties. (Aspra v. Director of prisons, 85 Phil. 737, 738) Example: A convict has been sentence by the following sentences: 14 years, 8 months and 1 day for homicide; 17 years, 4 months and 1 day in the second case; 14 years and 8 months in the third case and in the fourth case, 12 years for frustrated homicide or a totality of 59 years, 8 months and 2 days. The most severe penalty is 17 years, 4 months and 1 day as multiplying that into 3 the penalty is 52 years and 3 days. Inasmuch as the maximum penalty is 40 years, then it should be reduced to 40 years. (People v. Alisub, 61 Phil. 362, 366; People v. Lagoy, GR No. L-5112, May 13, 1954, 94 Phil. 1050) Q. 570. Ans. What are the leading doctrines relative to three-fold rule? The following: (1) The three-fold rule applies only when the convict has to serve at least four sentences. (2) If the sum total of all the penalties does not exceed the most severe multiplied by three, the three-fold rule does not apply. (3) In applying 3-fold maximum penalty, subsidiary imprisonment (i.e. nonpayment of fines) form part of the penalty because Art 70 provides "no other penalty in which he may be liable shall be inflicted after the sum total of those imposed equals. The maximum period." And moreover, Art 70 makes no distinction between the principal penalty and subsidiary imprisonment (Arlinda v. Escares, 102 Phil (4) The court must impose all the penalties for all the crimes of which the accused is found guilty, but in the service of the same they shall not exceed three times the most severe and shall not exceed 40 years (People v. Escares, 102 Phil. 679; People v. Jose, 37 SCRA 450, 477 (1971); Dulfo v. Sandiganbayan, 150 SCRA 138, 143 (1987) (5) If the sentence is indeterminate, the basis of the three-fold rule is the maximum term of the sentence.(People v. Desierto, CA 45 O.G. 4542) (6) The three-old rule applies although the penalties were imposed for different crimes, at different times and under separate information. (Torres v. Superintendent, 58 Phil. 847, 848;) However, the duration of the convict's sentence refers to several penalties for different offenses, not yet served out

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Q. 571. Ans.

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Distinguish imposition of penalty from service of sentence. The imposition of the proper penalty or penalties is determined by the nature, gravity, and number of offenses charged and proved; whereas, service of sentence is determined by the severity and character of the penalties imposed, in the impossibility or practicability of the service of the sentence, since actual service is contingency, subject to various factors like successful escape of the convict, grant of executive clemency or natural death of the prisoner. (People v. Peralta, et. al SCRA 759) What are the different systems of penalty. Explain each penalty system. They are: (1) The material accumulation system- previous legislation adopted the theory of absolute accumulation of crimes and penalties and established no limitations whatever and, accordingly, all the penalties for all the violations were imposed even if they reached beyond the natural span of human life. (Guevarra) (2) The juridical accumulation system- pars. 4,5 and 6 of Art 70 are in accordance with the juridical accumulation system. The service of the several penalties imposed Or one and the same culprit is limited to not more than three-fold the length of time corresponding to the most severe and in no case to exceed 40 years. (3) Absorption system (i.e.. the lesser penalties are absorbed by the graver penalties)- is observed in the imposition of the penalty in complex crimes (Art. 48, RPC), continuing crimes and specific dimes like robbery with homicide, etc. (Reyes, Supra, pp. 757-578)

Q. 572. Ans.

Q. 573. Ans.

State the graduated scales which must be observed by the court in applying such lower or higher penalty?

The courts, in applying such lower or higher penalty shall observe the following graduated scales: SCALE. NO.1 1. Death 2. Reclusion perpetua 3. Reclusion temporal 4. Prision mayor 5. Prision correccional 6. Arresto mayor 7. Destierro 8. Arresto menor. 9. Public censure 10. Fine SCALE NO 2. 1. Perpetual absolute disqualification

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2. Temporary absolute disqualification 3. Suspension from public service, the right to vote and be voted for, and the right to follow a profession or calling 4. Public censure 5. Fine.(Art. 71, Revised Penal Code) Q. 574. Ans. Why destierro is the penalty next lower in degree from arresta mayor? The scale of penalties in Art. 71 which places destierro below arresto mayor cannot be disregarded and the respective severity of arresto mayor and destierro must not be judged by the duration of each of these penalties, but by the degree of deprivation of liberty involved. The penalty next lower in degree from arresto mayor is destierro.(Uy Chin Hua v. Dingalasan, 47 O.G. Supp. 12, 233 overruling Rivera v. Geronimo, 756 Phil. 838 ruling that the penalty next lower from arresto mayor is arresto menor.) How do you compare these 3 articles of the Revised Penal Code, namely: Art. 25, 70 and 71? Under (1) Article 25, penalties are classified into principal and accessory penalties with the principal penalties being subdivided into capital, afflictive, correctional and light. (2) Under Art. 70, penalties are classified for the purpose of the successive service of sentences, according to their severity. (3) Under Art 71 it provides for the scale which should be observed in graduating the penalties by degree with destierro being placed below arresto mayor and above arresto menor. Under Scale No.1, all personal penalties, such as deprivation of life and liberty and scale no.1 are grouped all penalties consisting in deprivation of political rights. Q. 576. Ans. What is the rule of the order of payment of civil liabilities imposed by the court? The civil liabilities of a person found guilty of two or more offenses shall be satisfied by following the chronological order of the dates of the final judgments rendered against him, beginning with the first in order of time. (Art. 72, Revised penal Code) Are accessory penalties deemed imposed? Yes. Under Art. 73 of the Revised Penal Code 53. However, subsidiary imprisonment is not an accessory penalty; hence, the judgment of conviction must expressly state that the offender shall suffer the subsidiary imprisonment in case of insolvency. People v. Fajardo, 65 Phil. 539, 542) What is the penalty higher than reclusion perpetua?

Q. 575. Ans.

Q. 577. Ans.

Q. 578.

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Ans.

22

In cases in which the law prescribes a penalty higher than another given penalty, without specifically designating the name of the former, if such higher penalty should be that of death, the same penalty and accessory penalties of Article 40, shall be considered as the higher penalty. (Art. 74 Revised penal Code) The penalty higher than reclusion perpetua cannot be death because the penalty of death must be specifically imposed by law as a penalty for a given crime; otherwise, Art. 40 shall be imposed.

Q. 579. Ans. Q.580. Ans.

Can be fine be increased or decreased? Yes, under Art. 75 of the Revised Penal Code. (Art. 75, Revised Penal Code) How to determine the amount of fine when reduced by one or two degrees? There are cases where it becomes necessary to reduce the fines, because the penalty has to be lowered by one or two degrees. In determining the amount of the reduce fine, a distinction should be made between cases where the minimum amount is fixed by law and those where the minimum is not fixed by law Discuss legal period of duration of divisible penalties. The legal period of duration of divisible penalties shall be considered as divided into three parts, forming three periods, the minimum, the medium and the maximum in the following manner:

Q. 581. Ans.

PENALTIES

ENTIRE PERIOD

A. RECLUSION TEMPORAL 12 years and 1 day to 20 years Minimum Period 12 years and 1 day to 14 years + 8 months Medium Period 14 years. 8 months +1 day to 17 years and 4 months Maximum Period 17 years, 4 months +1 day to 20 years. B. PRISQN MAYOR, Absolute disqualification, special temporary disqualification. Minimum Period Medium Period Maximum Period C. PRISION CORRECCIONAL suspension and destierro Minimum Period Medium Period 6 years and + 1 day to 12 years

6 years and 1 day to 8 years 8 years and 1 day to 10 years 10 years and 1 day to 12 years From 6 Months and 1 day to 6 years 6 months and 1 day to 2 years and 4 months 2 years, 4 months +1 day to 4 years + 2

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Maximum Period D. ARRESTO MAYOR Minimum Period Medium Period Maximum Period E. ARRESTO MENOR Minimum Period Medium Period Maximum Period Q.582. Ans. months 4 years, 2 months + 1 day to 6 years 1 month +1 day to 6 months 1 month to 2 months 2 months + 1 day to 4 months 4 months + 1 day to 6 months From 1 day to 30 days 1 to 10 days 11 days to 20 days 21 days to 30 days

23

Distinguish period from degree. Period is designated to each of the three equal parts of a divisible penalty and designating "degree", the diverse penalties mentioned by name in the Revised Penal Code. (People v. Padilla, 36 O.G. 2404) Define complex penalty? It is a penalty prescribed by law composed of three distinct penalties, each forming a period; the lightest of them all shall be the minimum, the next medium and the most severe the maximum period. (Art. 77, Revised Penal Code) What is the -rule when the penalty is composed of three distinct penalties? Each of the distinct penalties shall form a period. For example if the penalty is reclusion temporal to death, the maximum shall be death, the medium is reclusion perpetua and the minimum is reclusion temporal. When is application of the rules under Art. 77 be applied by analogy? Whenever the penalty prescribed does not have one of the forms specially provided for in this code, in which case the periods shall be distributed applying by analogy the prescribed rules.(Art. 77, Revised Penal Code) For examples: (1) Art. 114 par. 3, provides for a penalty of prision mayor to death; hence, there are four penalties involved: prision mayor \ reclusion temporal, reclusion perpetua and death. By analogy the maximum is death, the medium is reclusion perpetua and the minimum is prision mayor to reclusion temporal. (2) For example under Art 294, par. 2 the penalty is reclusion temporal in its medium to reclusion perpetua and penalty is composed of two distinct penalties. Applying by analogy the rule under Art. 77, the maximum is reclusion perpetua, the medium is reclusion temporal in its maximum period and the minimum is reclusion temporal in its medium period

Q. 583. Ans.

Q. 584. Ans.

Q. 585. Ans.

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II. INDETERMINATE SENTENCE LAW AND THE PROBITION LAW A. Indeterminate Sentence Law

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Q. 586. Ans.

What is Act No.4103 as amended by Act No. 4225? It is known as Indeterminate Sentence Law and is an act to provide for an indeterminate sentence and parole for all persons convicted of certain crimes by the Courts of the Philippines Islands, to create a Board of Indeterminate Sentence Law and provides for said purpose. This law is passed last December 5, 1933 What are the purposes of Indeterminate Sentence Law? The purposes are: (1) To uplift and redeem valuable human material and prevent unnecessary and excessive jurisdiction of personal liberty and economic usefulness. (People v. Ducson, 59 Phil. 109; People v. Onate, 798 SCRA 43(1977) (2) It is intended to favor the accused particularly to shorten his term of imprisonment, depending upon his behavior and his physical, mental and moral record as a prisoner to be determined by the Board of Indeterminate Sentence. (People v. Nang Kay, 88 Phil. 515;People v. Onate, 78 SCRA 43 (1977))

Q. 587. Ans.

Q. 588.

What are the crimes are covered by the Indeterminate Sentence Law? State the rules for the application of the Indeterminate Sentence Law: (1) If the offense is punishable under the Revised Penal Code or its amendments; and (2) If the offense is punishable under any law (BAR a. 1957). State the application of the Indeterminate Sentence Law The court must, instead of a single fixed penalty, determine two penalties, referred to in the Indeterminate Sentence Law as the maximum and the minimum. The rules on crimes being covered by this law are: (1) Punished by Revised Penal Code - the maximum term of indeterminate sentence is the penalty in view of the attending circumstances that can properly be imposed under the Revised Penal Code. Minimum is one degree lower than the penalty prescribed by the Code: The minimum penalty should be within any period of the penalty next lower in degree to that prescribed by law and the minimum should within the proper period if the penalty where the sentence is a straight penalty (Sec. 1, Act. No. 4103) as amended by act No. 4225;Baban v. People, 61 SCRA 275;) However, the court cannot put the minimum penalty in the same period and the same degree as the maximum penalty, because the minimum penalty shall "be within the range of the penalty next lower to that prescribed by the Code for the offense."

Ans.

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(2) Punished by special law- maximum term of indeterminate sentence shall not exceed that minimum fixed by law and the minimum shall not be less than the minimum prescribed by the said law. (Sec. 1, Act NO. 4103) For example penalty is one year to five years. Indeterminate sentence may be 1 year to 3 years or 3 years to 5 years. Q. 589. Ans. To what crimes is the Indeterminate Sentence law not applicable? Give the cases where Indeterminate Sentence Law does not apply? Under what circumstances is the Indeterminate Sentence Law not applicable? In the following cases: (1) Offenses punished by death or life imprisonment (2) Those convicted of treason, conspiracy or proposal to commit reason. (3) Those convicted of misprision of treason, (Art, 114) rebellion (Art. 134), sedition (Art.139) or espionage (Art, 117). (4) Those convicted of piracy (Art 122, RPC); (5) Habitual delinquents (Art. 62, par. 5) and recidivist. (People v. Jaranilla, L28547, Feb. 22, 1974; People v. Clareon, CA 78 O.G 6701, Nov. 29, 1982) (6) Those who escape from confinement or those who evaded sentence.(Art. 157); (7) Those granted conditional pardon and who violated the terms of the same. (People v. Corral, 74 Phil. 359) (8) Whose maximum period of imprisonment does not exceed one year. (9) Those who are already serving final judgment upon the approval of the Indeterminate Sentence Law. (Sec. 2, Act No. 4103) (10) Those sentence to the penalty of destierro or suspension. (Sec. Act No. 4103 as amended by Act. No. 4225; People v. Almeda, CA-GR No. 1583, June 8, 1938) Why the penalties under the Indeterminate have to fix the minimum and maximum? Because of these reasons: (1) Whenever any prisoner shall have served the minimum penalty imposed on him, and it shall appear to the Board of Indeterminate Sentence that such prisoner is fitted for release, said Board may authorize the release of such prisoner on parole, upon such terms and conditions as may be presented by the Board. (2) Whenever such prisoner released on parole shall, during the period of surveillance, violate any of the conditions of his parole, the Board may issue an order for his arrests. In such a case, the prisoner is rearrested shall serve the remaining unexpired portion of the maximum sentence. (Secs. 5 and 8, Act. No. 4103) Even if a prisoner has already served the minimum, but he is' not fitted for release on parole, he shall continue to serve imprisonment until the end of the maximum. Q.591. What is the composition of the Board of Indeterminate Sentence (Board of Parole)? Its primary function?

Q. 590. Ans.

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Ans.

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It is composed of the Secretary of Justice as its chairman and 4 members appointed by the President, one of which shall be a clergyman or an education, one psychiatrist and one of them must be a woman. (Sec. 3, Act No. 4103) Its primary function is to recommend prisoner who have served the minimum penalty to be released on parole. And thereafter to issue final certification of release and discharge. (Sec. 6, Act. No. 4103) It has also power to order for the arrest of parolees violating the terms of their parole. (Sec. 8, Act No. 4103) B. BAR Questions

Q. 592. Ans.

If a person is convicted of a crime penalized with prision mayor maximum to reclusion perpetua, and there are no aggravating circumstances, is the accused entitled to the benefit of Indeterminate Sentence Law? Reason Yes because its application is mandatory (People v. Yu Lian, CA, 40 O.G. 4205). The minimum should be within the range of the penalty next lower to that prescribed by the Code. Supposing the crime is punishable with prision mayor, what would be the longest period of imprisonment imposable as minimum under the Indeterminate Sentence Law, Reasons One degree lower of prision mayor is prision correctional in its maximum. The minimum of the Indeterminate penalty is arresto mayor. So the longest period of imprisonment as minimum is six months. Charged with estafa in September 1983, the accused was found guilty and sentenced to an indeterminate penalty of 4 years, 2 months and 1 day of prision correccional, as minimum, to 8 years and 1 day of prision mayor, as maximum, and to pay a fine of P3, OOO.OO aside from the indemnification of the victim, with subsidiary imprisonment for both fine and indemnity in case of insolvency. Was the subsidiary imprisonment properly imposed? Explain Subsidiary imprisonment not properly imposed because the principal penalty (i.e., prision mayor) is higher than prision correccional. (par. 3. Art.39, Revised Penal Code). A was convicted of the complex crime of death through falsification of public document. Since the amount involved did not exceed P200.00, the penalty prescribed by law for estafa is arresto mayor in its medium and maximum periods. The penalty prescribed by law for falsification of public document is prision mayor plus fine not to exceed P5,OOO.OO. Impose the proper prison penalty The proper imposable penalty is any range within prision correccional (6 months and one day to 6 years) as minimum to any range within prision mayor maximum

Q. 593. Ans.

Q. 594.

Ans.

Q. 595.

Ans.

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(10 years and one day to 12 years) as maximum (People v. Gonzales, 73 Phil. 549). Q. 596. Assume in the preceding problem that there were two mitigating circumstances and no aggravating circumstances. Impose the proper prison penalty. With the two mitigating circumstances without circumstance to aggravate it, the proper imposable penalty shall be arresto mayor (in any of its period, i.e., ranging form 1 month and1 day to four years) as minimum to prision correccional as its maximum period (i.e., four years, two months and 1 day to 6 year). It was convicted of an offense penalized by a special law. The penalty prescribed is not less that six years but not more than twelve years. No modifying circumstance attended the commission of the crime. If you were the judge, will you apply the Indeterminate Sentence Law Ans. If I were a judge I am mandated to apply Indeterminate Sentence Law per See. 1, Act No. 4103. Under said law, the minimum must not be less than the minimum provided by law (i.e., 6 years and 1 day) and the maximum shall not be more than maximum provided therein- 12 years. (People v. Reyes, 186 SCRA 184). C. Probation Law of 1976 Q. 598. Ans. What is the purpose of Probation Law of 1976? The Probation Law of 1976 (Pres. Decree No. 968 as amended by Pres. Decree No. 1257 Batas Pambansa Big. 76 and Pres. Decree No 1990 has the following purposes. (1) Promote the correction and rehabilitation of an offender by providing him with individualized treatment. (2) Provide an opportunity for the reformation of a penitent offender which might be less probable if he were to serve a prison sentence; (3) Prevent the commission of offenses. (Sec. 2, PD No. 968 as amended)

Ans.

Q.597.

Q. 591. Ans.

Give the meaning of the following terms: (1) probation. (2) Probationer; and (3) Probation officer. Defining them: (1) Probation - is a disposition under which a defendant, after conviction and sentence, is released subject to conditions imposed by the court and to the supervision of a probation officer. (Sec. 3 (a), PD No. 968 as amended) (2) Probationer - means a person placed under probation. (Sec. 3 (b), Ibid)

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(3) Probation officers - means one who investigates for the court a referral for probation or supervises a probationer or both. (Sec. 3 (c), Ibid) Q. 592. Ans. What are the criteria for placing an offender on probation? In determining whether an offender may be placed on probation, the court shall consider all information relative to the character antecedents, environment, mental and physical condition of the offender, and available institutional and community resources. (Sec. 8, PD No. 968 as amended)

Q. 593. What are the cases that application for probation be denied by the court? Ans. Probation shall be denied if the court finds that: (1) The offender is in need of correctional treatment that can be provided most effectively by His commitment to an institution; (2) There is an undue risk that during the period of probation the offender will commit another crime; or (3) Probation will depreciate the seriousness of the offense committed. (Sec. 8 (a) (b) (c), PD No. 968 as amended) Q. 594. Ans. Who are the offenders that cannot benefit this probation system? The benefits of this Decree shall not be extended to those: (1) Sentence to serve a maximum of' imprisonment of more than six years; (2) Convicted of subversion or any crime against the national security or the public order; (3) Who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one jay and/or a fine of not more than two hundred pesos; (4) Who have been once on probation under the provisions of this decree; and (5) Who are already serving sentence at the time the substantive provisions of this Decree became applicable pursuant to Sec. 33 hereof. (Sec. 9 (a) to (e), PD No. 968 as amended. When probation is granted what are the conditions of probation being issued by the court? Every probation order issued by the court shall contain he following conditions: (1) Present himself to the probation officer designated to undertake his supervision at such place as may be specified in the order within seventy -two hours from receipt of said order; and (2) Report to the probation officer at least once a month at such time and place as specified by said officer. (Sec. 10 (a) (b), PD No. 968 as amended) What other matters may the Court require the probationer? The Court may also require the petitioner to:

Q. 595. Ans.

Q. 596. Ans.

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(1) Cooperate with a program of supervision; (2) Meet his family responsibilities; (3) Devote himself to a specific employment and not to change said employment without the prior written approval of the probation officer; (4) Undergo medical, psychological or psychiatric examination and treatment and enter and remain in a specified institution, when required for that purpose; (5) Pursue a prescribed secular study or vocational training; (6) Attend or reside in a facility established for instruction, recreation or residence of persons on probation; (7) Refrain from visiting houses of ill-repute; (8) Abstain from drinking intoxicating beverages to excess; (9) Permit the probation officer or an authorized social worker to visit his home and place of work; , (10) Satisfy any other condition related to rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience. (Sec. 10 (a) to ( k), Pd No. 968 as amended) Q. 597. Ans. What is the period of probation? Termination? The period of probation of a defendant sentenced to a term of imprisonment of not more than one year shall not exceed two years, and to all other cases, said period shall not exceed six years. After the period of probation, the court may grant an order for final discharge of probationer. What is the effect of termination or final discharge of probation? The final discharge of the probationer shall operate to restore to him all civil rights lost or suspended as a result of his conviction and to fully discharge his liability for any fine imposed as to the offense for which probation was granted. (Sec. 15, PD No. 968 as amended)

Q. 598. Ans.

D. Bar Questions Q. 599. In a case for violation of Sec. 8, RA No. 6525, otherwise known as the Dangerous Drugs Act, accused Vincent was given the benefit of the mitigating circumstances of voluntary plea of guilt and drunkenness not otherwise habitual. He was sentenced to suffer a penalty of six (6) years and one (1) day and to pay a fine of P6,OOO.00 with the accessory penalties provided by law, plus costs. Vincent applied for probation. The probation Officer favorably recommended his application. (a) If you were the judge, what action will you take on the application? Discuss fully. (b) Suppose that Vincent was convicted of a crime for which he was sentence

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to a maximum of ten (10) years. Under the law, he is not eligible for probation. He seasonably appealed his conviction. While affirming the judgment of conviction, the appellate court reduced the penalty to a maximum of four years and four (4) months taking into consideration certain modifying circumstances. Vincent now applies for probation. How will you rule on his application? Discuss fully. Ans. (a) I have to deny the application, if I were a judge because the penalty for which he was convicted was more than six years; hence, probation law is inapplicable in his favor. (b) The appeal he made with the appellate court denies him the right to probation. Law and jurisprudence may sustain this answer. (Sec. 4, PD No. 968 as amended by PD No. 1990; Bernardo v. Balagot; Francisco v. court of Appeals; Llamado v. Court of Appeals etc.) Q. 600. Juanito was found guilty of Robbery by the RTC of Manila and Sentenced to four years, two months and on day of prision correccional as minimum to eight years and twenty days of prision mayor as maximum. Juanito appealed to the Court of Appeals which found him guilty of theft and sentenced him to a straight penalty of one year. The decision of the appellate court was promulgated in May 1993. (a) Is Juanito entitled to the benefits of the Probation Law, which become effective on January 3, 1978? Why? (b) Suppose the prison term imposed by RTC in the above example is only two years is minimum to six years as maximum and Juanito did not appeal. When he applied for probation, it was discovered that in March 1960, a Municipal Court has sentenced him to a six-month imprisonment for less serious injuries which he full served. May his application for probation be granted? Reason ) Reason out. When he perfected his appeal, he was disqualified to wailed probation law because he was sentenced more than six years imprisonment. (b) The Law on probation disqualified him because under See. 9 (c) the probation cannot be extended to those previously convicted by final judgment of not less than one month and one day or a fine of not more than P200.00 Q. 601. A was charged with theft and upon arraignment, pleaded guilty to the charge. He was detained for failure to post bail. After two(2) months, a decision was rendered, sentencing A to an indeterminate sentence of six(6) months and 1 day as minimum to one year and 'One month as maximum and to pay the offended party the amount of P700.00. On January 16, 1985, the very day the sentence was read to A, the Judge issued a Commitment Order addressed to the Provincial Jail Warden. On January 31,1985, A applied for probation but his application was denied on the ground that the sentence of conviction became finally and executory on January 16, 1985 when A commence to serve his sentence. Is A eligible for probation?

Ans.

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A is still eligible for probation because he filed the application within the period for perfecting an appeal. What is provided by law is that no application for probation shall be entertained or granted if the defendant has perfected an appeal from the judgment of conviction. The commitment order issued before finality of decision is void and ineffectual. Aristides was found guilty by the trial court of challenging Bodinus to a duel and scoffing at Bodinus because of the latter's refusal to accept the challenge. The court sentenced Aristides to a penalty of imprisonment from four months and one day to two years and four months. In the dispositive portion of the decision, the court found Aristides entitled to probation and suspended the execution of the sentence for a period of two years. Aristides did not appeal the decision. State the purposes of the Probation Law and explain whether or not the action of the Judge promotes or serves these purposes.

Q. 602.

Ans.

As to purposes of Probation Law see Q No.598 and its answer p 197 of this text While the action of the Judge in granting probation is certainly serving the purposes of Probation Law; however, the decision is not valid because under the Probation Law there must be an application to be made before the court granted the same. In the problem, the application is absent and therefore the court has no basis to include it prematurely in the dispositive portion of the decision.